Writer and filmmaker Joshua M. Ferguson has had an application for a non-binary birth certificate put off, with the province saying it is working on developing a gender-neutral option but must first conduct a policy review.

Ferguson received an undated letter from the province's Ministry of Government and Consumer Affairs that responds to an application submitted May 12.

According to a news release issued Thursday, the letter from the province says that "at this time a change of sex designation to non-binary is unavailable" and notes that the Ministry is "working to develop a gender-neutral option for the Ontario birth certificate and is currently conducting a policy review." 

In an email to CBC Toronto, spokesperson Victoria Stacey confirmed that the Ministry is working to develop a gender-neutral option, and elaborated that since "a birth certificate is the foundation for many other forms of identification, we need to make sure we get this right for Ontarians."

birth certificate

Joshua M. Ferguson, an Ontario-born writer and filmmaker, wants to change the sex designation on their birth certificate from male to non-binary. (Joshua M. Ferguson)

Ferguson expressed disappointment at the province's decision.

"We now have both federal and provincial legislation that explicitly prohibits discrimination on the grounds of gender identity and gender expression," said Ferguson, in a news release. 

"With the existence of these laws, it is unacceptable for the Ontario Government to practice a form of discrimination by denying and/or delaying my right to receive my birth certificate; the birth certificate that displays my non-binary gender identity."

When asked about the Ministry's position on non-binary birth certificates, Stacey said that similar to driver's licences and health cards, the Ministry is developing a gender-neutral option for birth certificates — but the process could be a little more complicated.

"We need to consider that a change in birth certificates in this province could have consequences when seeking other forms of identification," Stacey told CBC Toronto in an email.

Despite those potential consequences, Ferguson says a solution needs to be figured out as soon as possible. 

"In effect, this denial and/or delay forces me to continue using all forms of identification that do not match who I am," said Ferguson. They went on to say that presenting such documents is difficult.

"These experiences, ranging from liquor stores, picking up parcels at a post office, dealing with hospitals and health professionals, professional experiences and travel both personal and professional, all come with stress and anxiety when I must present my false and discriminatory IDs," said Ferguson. 

"Identification is fundamental to our personal and professional lives. It could affect my travel to other countries for work and it has taken an emotional toll on me."

'I was really quite unhappy'

Ferguson came out as queer at 15 in Napanee, Ont. Two decades later Ferguson identifies as neither a man nor a woman, and submitted the application for a change of sex designation from male to non-binary in the hope of getting a new birth certificate.

Ferguson uses the pronouns they, them and their to reflect gender identity as a non-binary trans person — an identity realized some five years ago. 

"I was really quite unhappy, depressed, and I knew there was something in my life that I hadn't figured out yet," Ferguson told CBC Toronto in an exclusive interview last month. "There was always a piece missing, a piece of how I understood myself."

Joshua Ferguson

Joshua M. Ferguson (right), who had applied for a non-binary birth certificate in Ontario, with partner Florian Halbedl (left). (Joshua M. Ferguson)

Ferguson's application followed one by a St. John's activist who recently applied for a non-binary birth certificate in Newfoundland and Labrador.

The federal government also has said Canadians will soon have a third option, other than "male" or "female," to tick off on their passports. 

The move is meant to be in the spirit of Bill C-16, which would update the Canadian Human Rights Act and the Criminal Code, making it illegal to discriminate based on gender identity or expression. 

Meanwhile, Ferguson has retained lawyers Jonathan Schachter and Michelle Thomarat at Dewart Gleason LLP to review and respond to the government's letter. Ferguson expects to make a decision about how to respond "in the near future."